Ramachandran Subramanium vs Engineering Projects (India) Limited

Mr. Ramachandran Subramanian ....Appellant Vs.

M/s. Engineering Projects (India) Ltd. ...Respondent For Appellant: Dr. U.K. Chaudhary, Sr. Advocate with Mr. Mansumyer Singh, Mr. AVS Subramanyam, Mr. Kamil Khan, Advocates. For Respondent:

ORDER

(Through Virtual Mode)

25.07.2022: There is a re-filing delay of 49 days in this Appeal. We find

sufficient ground for condonation of re-filing delay. Re-filing delay of 49 days

is condoned.

2. Heard Dr. U.K. Chaudhary, Learned Senior Counsel for the Appellant.

This Appeal has been filed against the order dated 07.04.2022 passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi Bench

(Court-II) in I.A No. 1571 of 2022. The I.A has been filed by the Appellant/

Liquidator praying for following reliefs:-

"a) Pass appropriate order directing the

Respondent to release the entire encashed amount

of Rs. 13,18,15,788/- to the Applicant;

2

b) Pass an appropriate order directing the

Respondent for payment of interest @18% p.a. from

the date of encashment of the respective Bank

Guarantees till the date of their deposit."

3. The Adjudicating Authority in the order has noted that the Bank

Guarantees were encashed between the period 18.03.2014 to 09.06.2015 and

the Corporate Insolvency Resolution Process (CIRP) commenced on

07.08.2017. The Liquidator has filed the Application praying for release of the

entire encashed amount of Rs. 13,18,15,788/- to the Appellant/ Liquidator.

When the Bank Guarantees were encashed years before initiation of the CIRP,

the encashment of the Bank Guarantees cannot be made subject of the

Application which was filed by the Appellant. These are the Bank Guarantees

which were not encashed during the CIRP period rather much before the

commencement of the CIRP. The Adjudicating Authority has rightly refused to

grant the reliefs to the Appellant by the impugned order.

4. Learned Counsel for the Appellant has referred to Section 60(5)(b) of the

IBC and submits that it was open to raise any claim by or against the

Corporate Debtor before the Adjudicating Authority.

5. There is no dispute with regard to filing of the Application I.A. No. 1571

of 2022 under Section 60(5) which gives jurisdiction to Adjudicating Authority

to consider the Application in accordance with law. Section 60(5) provides a

forum for claim to be filed, but on merits the Adjudicating Authority has taken

the correct view of the matter that the prayers made in the Application cannot

Comp. App. (AT) (Ins.) No. 791 of 2022 & I.A. No. 2134 of 2022 3

be allowed. We see no reason to take a different view in the matter. The Appeal

is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) No. 791 of 2022 & I.A. No. 2134 of 2022